Fire Law: 2011 Retrospective of Fire Service Legal Developments

With 2012 upon us, let’s look at the most important, interesting and bizarre fire service legal stories of 2011. The important cases set or affirm precedents that impact hundreds if not thousands of firefighters. The interesting cases capture our attention, while the bizarre cases are, well, bizarre. Let’s start with the three most important cases.

First is the case I consider to be the most important of 2011: Westmoreland v. Sutherland, handed down by the U.S. 3rd Circuit Court of Appeals. Ron Westmoreland is a Bay Village, OH, firefighter and member of the department’s dive team. In 2008, the city eliminated the dive team to save money. Shortly thereafter, there were two drowning deaths in the community.

At a city council meeting, Westmoreland voiced concern over the elimination of the team. The court quoted him as follows: “You keep rolling the dice, hoping everything will be alright. You cut our manning, you cut our training and you cut money in various places, which is not my responsibility...Now a 7-year-old kid is dead that last year would have been found in about 20 minutes by the Bay Village dive team.” Westmoreland was cited for “insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior and conduct unbecoming of an officer” and suspended for three 24-hour shifts. He filed suit, claiming his First Amendment rights were violated.

The 3rd Circuit agreed with Westmoreland and restated the key considerations for determining whether a firefighter’s speech is protected: the firefighter must be speaking as a private citizen (off duty and not as a spokesperson for the department) and on a matter of public concern. The court recognized that the way Westmoreland voiced his concerns (at an open forum for public comment before the city council) was appropriate under the circumstances.

The court also dismissed the city’s argument that Westmoreland’s comments were private because he may receive additional overtime pay or income from a private dive business if the team was reinstated. The fact that an employee may receive a personal benefit does not change the public nature of the concerns raised. Lastly, the court said that when a firefighter speaks as a private citizen about a matter of public concern, a fire department may discipline the firefighter for making false statements only if it can prove the statements were false and the employee knew they were false when he made them (or at least was reckless with regard to the truth).

The second case is Marcelin v. City of West Palm Beach, decided by the U.S. 11th Circuit Court of Appeals and the latest effort to clarify a firefighter’s right to remain silent during an administrative investigation. It held that a firefighter ordered to answer employment-related questions must answer even if the answers would incriminate him or her in a criminal case. The protection afforded by the Fifth Amendment’s privilege against self-incrimination is satisfied because the statements made cannot be used by law enforcement. However, work-related questions must be answered.

The third case is NAACP v. North Hudson Regional Fire & Rescue, a U.S. 3rd Circuit Court of Appeals decision. North Hudson Regional Fire & Rescue in New Jersey’s residency requirement limited applicants to residents of one of the district’s five communities. The district was 69.6% Hispanic, 22.9% white and 3.4% African American. The department was 79.5% white, 19.2% Hispanic and 0.6% African American. The NAACP sued on behalf of African American applicants, claiming the requirement created a disparate impact.

The department’s defense was that opening the process to non-residents would disadvantage Hispanics and other minorities by letting more white applicants from other towns apply. The court acknowledged that some New Jersey departments use residency requirements to enhance minority employment opportunities. The court even referenced a 1977 race-discrimination suit brought by the federal government against 12 New Jersey municipalities, where the jurisdictions entered into consent decrees that mandated the use of residency requirements to enhance minority recruitment. Those decrees remain in effect today to help minority recruitment.

But the 3rd Circuit rejected the use of the residency requirement in this case, finding that it served to limit the number of African Americans applying to the department and thereby caused the disparate impact. The court further concluded that the use of the residency requirement could not be justified as a business necessity.